BVA9513677
DOCKET NO. 92-15 503 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an increased rating for a right knee
disability, currently rated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Connolly. Associate Counsel
INTRODUCTION
The veteran had active service from February 1974 to January
1977.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an October 1991, rating decision of
the Chicago, Illinois, Regional Office (RO) of the Department
of Veterans Affairs (VA) which assigned a temporary total
rating under 38 C.F.R. § 4.30 (1994) from May 15, 1991 to
August 1, 1991 when a 20 percent rating was assigned. The
notice of disagreement in which the veteran requested an
extension of benefits under 38 C.F.R. § 4.30 to November 1,
1991 and a 30 percent evaluation was received in November
1991. In a November 1991 rating action. benefits under 38
C.F.R. § 4.30 were extended to November 1, 1991, satisfying
the veteran’s notice of disagreement regarding an extension
of benefits under 38 C.F.R. § 4.30.
The statement of the case was sent to the veteran in December
1991. The substantive appeal was received in October 1992.
In a March 1993 decision, the Board remanded this case for
further development.
The Board notes that the issues of entitlement to a total
disability rating for compensation purposes based on
individual unemployability as well as entitlement to service
connection for a left knee disability, a low back disability,
and a bilateral hip disability, all secondary to service-
connected right knee disability, were raised at the time of
the June 1993 VA examination.
Because the claim currently on appeal is one for an increased
schedular rating, the additional claim for a total rating is
not inextricably intertwined with the underlying claim.
Holland v. Brown, 6 Vet.App. 443 (1994). Likewise, the Board
notes that the disposition of the veteran's claim for the
aforementioned secondary disorders is not inextricably
intertwined with the claim for an increased evaluation for
service-connected right knee disability as the secondary
disorders may be rated under separate diagnostic code(s) in
the VA's Schedule for Rating Disabilities. Kellar v. Brown,
6 Vet.App. 157, 160 (1994).
Therefore, the Board refers all of the aforementioned issues
to the RO for appropriate development.
As a claim for compensation may be a claim for pension under
38 C.F.R. § 3.151 (1994), the issue of entitlement to pension
is also referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative essentially contend that
his service-connected right knee disability is more disabling
than is represented by the current 20 percent rating. He
asserts that he has severely limited flexion and severe
lateral instability. The veteran further asserts that his
knee buckles and that he plans to request a cane for
ambulation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence supports a disability rating
of 30 percent for the veteran's service-connected right knee
disability.
FINDINGS OF FACT
The veteran's service-connected right knee disability is
objectively manifested by limitation of motion on flexion;
buckling of the right knee; and three scars: a vertical scar
on the anterior aspect of the right knee measuring 3.5 inches
in length, a 3 inch horizontal scar on the medial and below
the right knee, and a 1.5 inch oblique scar above and to the
right of the right knee. Subjectively, the veteran exhibits
severe pain upon pressure in each of the anterior or lateral
areas of the right knee.
CONCLUSION OF LAW
The schedular criteria for a disability evaluation of 30
percent for a right knee disability, have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.40, Part 4, Diagnostic Code 5257 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim as to this issue is well grounded within
the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, we
find that he has presented a plausible claim. We are also
satisfied that all relevant facts have been properly
developed and that no further assistance to the veteran is
required to comply with the duty to assist mandated by 38
U.S.C.A. § 5107 (West 1991).
Where entitlement to compensation has already been
established and increase in disability rating is at issue,
present level of disability is of primary concern. Further,
although a review the recorded history of a disability should
be conducted in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet.App. 55, 58
(1994). Therefore, although the Board has thoroughly
reviewed all medical evidence of record, the Board will focus
on the most recent medical findings in the evaluation of the
current level of the veteran's right knee disability.
The Board will review the veteran's medical history regarding
his service-connected right knee disability. A review of the
service medical records revealed that on entrance in December
1973, an examination of the right lower extremity showed that
the veteran had 4 centimeters between malleloli with femoral
condyles touching. He was accepted for service. On
September 22, 1976, the veteran sought medical treatment
after he sustained a twisting injury to his right knee while
playing football. Physical examination revealed that the
right knee was slightly warm, grossly swollen, and tender.
The knee was too painful for an adequate assessment to be
made of the residuals of the injury. He was subsequently
treated at the orthopedic clinic. The examiner reported the
veteran’s past medical history. It was noted that the
veteran had sustained a possible dislocated right patella
when he was 18 years old, but had no further problems with
his right knee before the current football injury. Physical
examination revealed that his right knee was swollen and
tender medially over the proximal tibia. He exhibited zero
to 100 degrees of flexion, no medial or lateral instability
was demonstrated, and the veteran had a negative Drawer’s
sign. X-rays were negative. The diagnosis was hemarthrosis
of the right knee with possible internal derangement.
Subsequently the veteran was provided crutches and
participated in physical therapy. On October 3, 1976, the
veteran was treated after being hit by a car while he was
riding his bicycle. No injury to the right knee was noted.
On December 9, 1976, the veteran’s knee appeared swollen, but
there was no effusion and he exhibited good motion. The
impression was sprained right knee. On December 10, 1976,
the veteran was treated at the physical therapy clinic. He
related that he was working on leg presses two days before
when he noted a tearing sensation of the medial aspect of the
right knee. The veteran further reported that he noted
immediate swelling and medial joint pain and was unable to
extend the knee immediately after the incident. On December
15, 1976, the veteran reported decreased pain and decreased
swelling was noted. His range of motion was 5 to 115
degrees. There were no further findings pertinent to the
right knee in the service medical records. The veteran was
discharged from service in January 1977.
Following discharge, the veteran filed a claim for
compensation benefits. In conjunction with his claim, he was
afforded a VA examination in March 1977. The examiner noted
that the veteran had injured his right knee playing football
during service. Physical examination revealed that the lower
extremities were bilaterally asymmetrical. Examination of
the right lower extremity revealed gross evidence of an
effusion. No ballottement of the patella could be
accomplished. The lateral and collateral ligaments were
intact and the cruciate ligaments appeared to be stable, but
McMurray’s maneuvers could not be elicited because of the
relatively marked effusion of the knee. Range of motion of
the knee flexed from a horizontal of zero to 120 degrees.
The leg lacked approximately 20 degrees of flexion. Gait and
station were within normal limits. X-rays revealed no bony
abnormality, but the supra-patella bursa appeared swollen.
The diagnosis was traumatic effusion with suspect underlying
internal derangement of the right knee, symptomatic.
In an April 1977 rating decision, entitlement to service
connection for residuals of a right knee injury with effusion
was granted and a 10 percent rating was assigned.
In May 1977, the veteran was hospitalized for an arthroscopy
and a medial meniscectomy. At the time of admission,
physical examination of the right knee revealed effusion of
the right knee joint, but no evidence of patellofemoral
crepitus. Fairbanks sign was negative. Range of motion was
from zero to 120 degrees of flexion. There was pain with
hyperflexion. There was no evidence of instability and
McMurray’s sign was positive. An arthroscopy was performed
in the posterior medial compartment of the knee which
revealed a tear in the posterior horn of the right medial
meniscus. At the same time as the arthroscopy, the veteran
underwent a medial meniscectomy. In a subsequent July 1977
rating decision, the veteran was granted a temporary total
rating for a one month period of convalescence under 38
C.F.R. § 4.30. The veteran’s right knee disability was
recharacterized as post-operative tear of the posterior horn,
right medial meniscus and the 10 percent rating was continued
effective from July 1, 1977.
The veteran was afforded another VA examination in August
1979. The veteran ambulated with the assistance of a cane in
his right hand and with a right limp. Physical examination
revealed a well-healed post-operative scar in the antero-
medial aspect of the lower portion of the right knee, scar of
the medial meniscectomy three and a half by one eighth inch,
nonadherent, nonfibrotic, and nonsymptomatic. The veteran
was able to extend both knees fully and did not hyperextend.
The right knee lacked 20 degrees of full flexion and was
painful in the area of the anterior medial aspect of the
joint (the post-operative site). There was no instability.
The collateral and cruciate ligaments appeared to be intact
bilaterally. There was considerable swelling of the right
knee, especially in the supra-patellar region where is was an
inch and a quarter larger that the left knee on
circumferential measurements. The right calf was a quarter
of an inch larger that the left calf and the right thigh was
a quarter of an inch smaller than the left thigh in the
midportion. The strength of the right thigh was about half
that of the left due to the painful condition of the right
knee. The veteran exhibited good strength on the right. No
crepitation was noted and the veteran did not exhibit
tenderness in compression of the patella bilaterally. X-rays
of the right knee revealed minimal hypertrophic changes at
the distal end of the femur and at the head of the tibia, but
the joint spaces appeared well-preserved. There was some
tissue fullness in the anterior joint space below the patella
which was compatible with the clinical impression of
effusion. The diagnosis was residuals, injury to the right
knee, post medial meniscectomy with chronic effusion and mild
limitation of flexion. Based on the August 1979 VA
examination, the veteran was granted an increased rating of
20 percent in a September 1979 rating decision.
In September 1979, the veteran was hospitalized at a VA
facility for an arthroscopy of the right knee. Physical
examination upon admission revealed moderate quad atrophy of
the right knee relative to the left knee. There was no or
possibly minimal effusion, but there was a boggy synovium.
There was a negative McMurray and Aplitest. Tenderness at
the insertion of the patellar tendon over the anterior tibial
tubercle was noted. Also, tenderness was noted medial and
lateral to the patella, but not directly on the patella.
Range of motion was zero to 120 degrees. There was no
ligamentous laxity at zero to 30 degrees and the knee was
intact. Neurological was physiologic. Arthroscopy of the
knee and corrective therapy were given.
In December 1980, the veteran was afforded another VA
examination. Physical examination revealed that the
veteran’s gait and station were within normal limits. A
medial arthrotomy incision was present on the right knee
which was nontender and nonadherent. The range of motion was
normal and the collateral and cruciate ligaments were intact.
There was no evidence of rotatory instability. McMurray’s
sign could not be demonstrated. Sensory and motor systems
were intact. Arterial pulses were equal bilaterally. The
diagnosis was post medial arthrotomy of the right knee with
internal derangement, symptomatic with sequellae. In a
February 1981 rating decision, the veteran’s rating for his
service-connected right knee disability was reduced to non-
compensable. The RO found that his residual meniscectomy had
improved. The veteran appealed that decision.
Treatment records dated from 1979 to 1981 were received.
Treatment records through June 1981 essentially revealed that
the veteran’s right knee showed improvement. There was no
instability or effusion, although some crepitus was noted.
The veteran exhibited full range of motion and no instability
was demonstrated. The surgical scar was nontender. It was
noted that the veteran had chondromalacia of the right knee.
In September 1981, x-rays revealed minimal osteoarthrosis.
At that time, the veteran complained of persistent pain of
the right knee. The clinical impression was degenerative
joint disease of the right knee. In December 1981, the
veteran was hospitalized at a VA facility for an arthroscopy
of the right knee. Upon admission, physical examination
revealed medial joint line tenderness and pain on extreme
flexion. The apprehension test was positive. Drawer’s sign
was negative and there was no medial or lateral instability
or effusion. The arthroscopy revealed anterior medial and
anterior lateral instability, grade II patellar
chondromalacia, torn anterior cruciate, post meniscectomy
arthrosis.
In an April 1982 rating decision, the RO restored the
veteran’s 20 percent rating for his right knee disability,
effective from the date of the reduction.
In December 1982, the veteran was again hospitalized at a VA
facility for an arthroscopy. Physical examination upon
admission revealed that although the veteran did not have
effusion, he had positive lateral joint line tenderness with
positive anterior drawer sign and positive Apley’s test. The
veteran was neurovascularly intact. Post-operative diagnosis
and findings were compatible with postmeniscectomy arthrosis
of the medial compartment with grade IV medial compartment
disease. Post-operatively, the veteran developed a slight
effusion possibly hemarthrosis which resolved spontaneously.
Range of motion at discharge was zero to 90 with no
appreciable effusion. The veteran’s 20 percent rating for
his service-connected right knee was confirmed and continued
in a September 1983 rating decision.
In May 1991, the veteran sought an increased rating for his
service-connected right knee disability. VA hospitalization
records dated in May 1991 were received which revealed that
the veteran underwent reconstruction of the right anterior
cruciate ligament. Physical examination upon entrance
revealed that the veteran did not have effusion or
mediolateral instability. McMurray’s sign was negative.
Lachman’s sign was 3+, Drawer’s sign was 2+, posterior Drawer
sign was negative, and pivot shift was 1+. X-rays of the
right knee were unremarkable. A right anterior cruciate
ligament reconstruction was accomplished. Post-operatively,
the veteran was placed in a postoperative knee brace with
range of motion of minus 30 to 60 degrees. In June 1991, the
veteran was afforded a VA orthopedic examination which
revealed that he had been wearing a Lenox-Hill brace which
limited flexion to 30 degrees. A 4 centimeter open wound on
the knee was noted. Range of motion was limited due to the
reconstructive surgery. The veteran lacked 5 degrees of full
extension and flexed to 40 degrees. Stability testing was
not performed. X-rays showed narrowing of the medial joint
spaces and some marginal sclerosis.
In an October 1991 rating decision, the veteran was granted a
temporary total rating based on hospitalization from May 15,
1991 to May 23, 1991 and then for a two month convalescent
period under 38 C.F.R. § 4.30 to August 1, 1991. Thereafter,
a 20 percent rating for the service-connected right knee
disability was assigned based on moderate knee disability and
limitation of flexion. The veteran appealed the 20 percent
rating and sought an increased rating.
VA hospitalization treatment records dated in July and August
1991 were received. In July 1991, the veteran was again
hospitalized at a VA facility for dehiscence of the right
knee anterior cruciate ligament reconstruction wound and for
redehiscence of the right knee anterior cruciate ligament
wound over the right knee. In August 1991, the veteran was
again hospitalized at a VA facility for anterior cruciate
ligament deficit of the right knee and dehiscence of midline
wound of the right knee. In a November 1991 rating decision,
the veteran’s temporary rating was extended based on the July
and August 1991 hospitalizations through the end of second
hospitalization on August 26, 1991 with a two month
convalescence period under 38 C.F.R. § 4.30 thereafter until
November 1, 1991. Thereafter, the 20 percent rating was
assigned.
In March 1993, the Board remanded this case to the RO for the
RO to request recent clinical records and to schedule the
veteran for a VA orthopedic examination. VA treatment
records dated in April and May 1993 revealed that the veteran
was treated for symptomatology associated with his right
knee. An April 1993 record revealed that the veteran’s range
of motion of the right knee was zero to 110 degrees without
any instability. The Board notes that a May 28, 1993 record
noted that the veteran reported that he had been working all
day which was the reason why he had not been showing up for
his appointments.
In June 7, 1993, the veteran was afforded the VA examination.
At that time, the veteran complained that his right knee
buckled frequently. He related that he did not have any
dislocation of the right knee as he had in the past. The
veteran related that he was not working and was laid off 2
months before due to his knee problems. The examiner noted
that the veteran ambulated with a limp on the right, but did
not use a cane. Physical examination revealed that the
veteran’s entire right knee hurt with pressure by the
examiner in each of the anterior or lateral areas examined
and the pain was quite severe. Scars were noted on the right
knee including a vertical scar on the anterior aspect of the
right knee measuring 3.5 inches in length. There was a 3
inch horizontal scar on the medial and below the right knee.
In addition, there was a 1.5 inch oblique scar above and to
the right of the right knee. Dorsiflexion without resistance
was to 85 degrees on the right. Twisting of the right leg
elicited severe pain. Straight leg raising on the left was
to 85 degrees and on the right to 80 degrees. Flexion of the
right leg on the thigh at the knee was to 45 degrees with
flexion of the right thigh at the hip on the trunk was also
to 47 degrees. The veteran was unable to walk in a straight
line in a heel-toe manner. On squatting, he was unable to
bend his thighs to only 45 degrees with his legs being a
broad base. X-rays revealed no changes from prior x-rays
except for the status post-operative changes. The examiner
noted that a review of the claims file had been accomplished
and listed the prior surgical procedures involving the
veteran’s right knee. The diagnosis was status post-right
medial meniscectomy (1977) for tear in the posterior horn of
the right medial meniscus; status post-anterior cruciate
ligament reconstruction, right knee (1991) because of
anterior cruciate ligament insufficiency; posterior
meniscectomy arthrosis of the right knee previously noted on
arthroscopy; chondromalacia of the right patella previously
noted on arthroscopy; residuals of status post-right medial
meniscectomy for tear in the posterior horn of the right
medial meniscus and status post-anterior cruciate ligament
with current limitation of motion as well as severe pain and
buckling of the right knee with degenerative changes.
Currently, the veteran contends that his right knee
disability is more disabling than is represented by the 20
percent rating. The evaluation assigned for a service-
connected disability is established by comparing the
manifestations indicated in the recent medical findings with
the criteria in the VA's Schedule for Rating Disabilities.
38 C.F.R. Part 4 (1994). When there is a question as to
which of two evaluations should be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (1994). The rating schedule provides that traumatic
arthritis established by X-ray findings is to be rated on the
basis of limitation of motion for the specific joint
involved. 38 C.F.R. Diagnostic Code 5010-5003. The rating
schedule provides a 20 percent rating where flexion is
limited to 30 degrees and a 30 percent rating where flexion
is limited to 15 degrees. 38 C.F.R. Diagnostic Code 5260.
It provides a 20 percent rating where extension of the leg is
limited to 15 degrees, a 30 percent rating for limitation to
20 degrees, a 40 percent rating for limitation to 30 degrees,
and a 50 percent rating for limitation to 45 degrees. 38
C.F.R. Diagnostic Code 5261. Full range of motion of the
knee is from zero to 140 degrees. 38 C.F.R. § 4.70 Plate
II (1994). The rating schedule also provides a 20 percent
rating for moderate impairment of the knee and a 30 percent
rating for severe impairment of the knee as measured by the
degree of recurrent subluxation or lateral instability. 38
C.F.R. Diagnostic Code 5257. Under Diagnostic Code 5258, a
20 percent rating is appropriate for semilunar cartilage,
dislocated, with frequent episodes of locking, pain, and
effusion of the joint. However, since the veteran does not
currently demonstrate any dislocation of the semilunar
cartilage and since a rating in excess of 20 percent is not
available under that code, Diagnostic Code 5258 is
inapplicable.
Likewise, ankylosis of the knee is rated under Diagnostic
Code 5256, however, the Board further notes that the medical
evidence does not show that the veteran has ankylosis of the
right knee. Therefore, Diagnostic Code 5214 is inapplicable
in this case. The rating schedule also provides ratings for
superficial scarring of the skin. Scars which are
superficial, poorly nourished, with repeated ulceration are
rated as 10 percent disabling under Diagnostic Code 7803.
Scars which are superficial, tender and painful on objective
demonstration are rated as 10 percent disabling under
Diagnostic Code 7804. Since the veteran’s scars are well-
healed and nontender and since a higher rating is not
available under Diagnostic Codes 7803-7804, those diagnostic
codes are inapplicable.
The Board notes that the veteran has degenerative joint
disease of the right knee. As noted, traumatic
(degenerative) arthritis is rated according to the limitation
of motion of the knee. Although the veteran demonstrated
limitation of motion on flexion, his flexion is limited to 45
degrees, such limitation does not meet the criteria for an
increased rating under Diagnostic Code 5260. Specifically,
limitation of flexion to 15 degrees is necessary for a 30
percent rating. Similarly, since the recent clinical records
and the VA examination did not reveal any limitation of
motion on extension, a higher rating under Diagnostic Code
5261 is not warranted.
The Board has considered whether a higher rating is warranted
under Diagnostic Code 5257. In order for a higher rating to
be warranted, the medical evidence would have to show severe
impairment of the right knee as measured by the degree of
recurrent subluxation or lateral instability. In addition,
the Board has considered the provisions 38 C.F.R. § 4.40
(1994). Under that provision, functional loss or weakness
due to pain supported by adequate pathology and evidenced by
the visible behavior of the appellant is deemed a serious
disability. Upon review of the medical records, the Board
observes that the veteran’s service-connected right knee
disability is objectively manifested by limitation of motion
on flexion; buckling of the right knee; and three scars: a
vertical scar on the anterior aspect of the right knee
measuring 3.5 inches in length, a 3 inch horizontal scar on
the medial and below the right knee, and a 1.5 inch oblique
scar above and to the right of the right knee. Subjectively,
severe pain was noted upon pressure in each of the anterior
or lateral areas of the right knee.
On the basis of the medical evidence set forth above and in
consideration of 38 C.F.R. §§ 4.7, 4.40 (1994), the Board
finds that a rating for severe impairment of the knee under
Diagnostic Code 5257 more closely approximates the current
disability of the right knee as his right knee disability was
noted by a recent examiner to presently cause severe pain and
instability. However, a 30 percent rating is the highest
schedular rating available under that code. The Board has
considered whether a higher rating is warranted on an
extraschedular basis pursuant to 38 C.F.R. § 3.321 (1994),
but finds that an extraschedular rating is not warranted.
The veteran has not been hospitalized since August 1991 and
there is no objective evidence of marked interference with
employment such as to render impractical the regular
schedular standards. Although the veteran reported that he
had been laid off two months ago due to knee problems at the
time of his June 7, 1993 VA examination, a VA treatment
record dated May 28, 1993 revealed that he reported that he
had “been working all day” which was the reason why he hadn’t
been showing up for his appointments. The Board observes
that the May 28, 1993 record indicated that the veteran had
steady employment. In light of that statement and the lack
of any objective evidence of marked interference with
employment, the Board finds that an extraschedular rating is
not warranted on that basis.
The schedular criteria for a disability evaluation of 30
percent for a right knee disability, have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.40, Part 4, Diagnostic Code 5257 (1994).
ORDER
An increased rating of 30 percent is granted.
E. M. KRENZER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.